Judge's injunction likely halts work for the year

Opponents of Bend's controversial surface water improvement project expressed appreciation Wednesday for a federal judge's preliminary injunction, blocking work to replace two aging pipelines from a Tumalo Creek tributary until a fuller hearing can be held.

The two sides will hold settlement talks, but a city appeal is possible.

Central Oregon LandWatch has opposed Bend's potentially $70 million project from the get-go.

The group fought for an injunction because they wanted a federal court to look over their objections. On Tuesday they won that round, after a judge blocked work from starting.

On Wednesday, NewsChannel 21 talked with the group's executive director and city council candidates bout the decision.

Council candidate Barb Campbell is one of four opposed to the project.

"I think the city council is like, they went into a restaurant and ordered before ever seeing the menu," Campbell said.

The four, also including Doug Knight, Sally Russell and Jim Clinton say they will push for the city to consider other alternatives.

"They have made the decisions before they bought the steel," Campbell said. "Before they ever had a permit, they turned that steel into pipe. There are still questions (that) abound."

The opposition, led by a group called "Stop the Drain, goes beyond council candidates but seven former mayors, 1,500 petitioners and of course, Central Oregon LandWatch.

"I've never seen such a broad consensus or coalition on any issue," said Paul Dewey, a Bend lawyer and executive director of the group. He says the federal judge's injunction to halt the water project is the correct move.

"She had commented during the hearing that water is really going to be the next oil, and it is the next oil," Dewey said. "And that decision about the management of water and decisions like this that are going to have an effect on the water system for the next 100 years they need to be made very carefully."

Council candidate Ed Barbeau said the injunction is likely to be in place through the winter, putting the city's plans on hold.

"The only silver lining is that it may give the city of Bend time to formulate a plan to get rid of the filtration side of this, which was mandated by the feds," Barbeau said.

Campbell says people will be watching what the new council is going to do.

"No matter what happens with this injunction, there will be seven months between January when the new council starts their work and July, when construction can be restarted if the injunction doesn't completely stop the project," Campbell said. "We essentially have seven months to reconsider the decisions that have been made."

While the project is costly, the delays could be too -- not to mention the cost of the court fight.

The city and opponents received the order from U.S. District Judge Ann Aiken late Tuesday, and a settlement conference is set for next Monday in Eugene. If no agreement can be reached, further hearings will be scheduled.

Among other points, Aiken wrote that, "The Forest Service failed to take a hard look and disclose the project's impacts consistent with NEPA (federal environmental policy law) requirements."

"The immediate implementation of the project will irreparably harm plaintiff and its members and supporters that use and enjoy the area at issue for its aesthetics, recreation such as hiking, camping, fishing and photography, as well as watershed research, education and observing wildlife," Aiken wrote, in a decision apparently signed Oct. 11.

"Because serious questions remain, and the court cannot resolve these questions on the merits with the information presently before it, a preliminary injunction is warranted until (a) briefing on the merits occurs," the judge said.

Aiken said "many questions cannot be resolved at the hearing for an injunction and the court perceives a need to preserve the status quote and prevent harm to the parties."

"We were somewhat surprised by the judge's decision," City Manager Eric King said. noting that the U.S. Forest Service had offered to limit Bend's water intake to its historic withdrawal rate of 18.2 cubic feet per second.

King said the city had asked the Forest Service for permission to boost the city's water withdrawal to 21 cfs, well within its maximum 36 cfs water right "but within what we determined as a reliable flow, given the priority date of the water right, as well as historic flows on the creek."

City Attorney Mary Winters said the Forest Service, in issuing a special use permit, proposed to limit the city's water withdrawal from Bridge Creek (a tributary of Tumalo Creek).

"We said, 'Don't issue an injunction, we'll limit (water withdrawal) until the (final court) ruling or for a year, whichever is less," Winters said. "A lot of her concern seemed to be with the modeling and temperature. So it's kind of surprising to us that she didn't even address that proposal."

As for the immediate plans the city had -- to do the pipeline replacement this fall, during low water flows -- "I think that (ruling) pretty much solidifies we probably won't begin construction this fall."

King also said the city most likely will wait until after next week's mediation conference before deciding whether to appeal Aiken's ruling to the Ninth U.S. Circuit Court of Appeals.

Opponents of the project -- the first phase costing more than $20 million but with a possible eventual price tag of $68 million -- have claimed the project would cause irreparable harm to Tumalo Creek, its fish habitat and the surrounding area.

Many critics have said the city instead should stop using surface water and only use groundwater wells. Supporters of the project, a hot issue in this fall's city council race, have said the city is fortunate to have two water sources and should give up the surface water source.

LandWatch attorney Paul Dewey said the city actually cleared an acre of land before the Forest Service shut them down.

King said some land was cleared by the contractor a few weeks ago, to store pipe, without prior city authorization. But he said no trees were removed, only clearing of some brush and leveling the site, and that the Forest Service used the land for staging of its own earlier project.

King said the Forest Service made the city aware of the situation, and the city required the contractor to work with the agency to restore the site -- which Dewey said is now "turquoise" due to hydro-seeding.

Critics issued the following news release about Tuesday's ruling:

(Eugene, Oregon) Chief Judge Ann Aiken of the Federal District Court of Oregon issued an injunction today preventing the City of Bend from starting construction on its controversial $68 million Surface Water Improvement Project (SWIP), holding that the project is likely to violate protections put in place to protect wild fish and healthy rivers.

Judge Aiken issued a temporary restraining order on October 4, 2012 and in an injunction decision filed today, Judge Aiken ruled that LandWatch is likely to prevail on the merits of the case. Judge Aiken ruled that the City of Bend’s contractor HDR ”used stream temperature data that was more than 25 years old” and that as a result its work was unreliable. She determined that immediate implementation of the SWIP “will irreparably harm plaintiff and its members and supporters” because “the Project will degrade water quality, diminish aesthetic values and harm fish and wildlife in and around the Project area.”

Ralph Bloemers is a staff attorney with the Crag Law Center and represented LandWatch on its request for an injunction.

Bloemers said, “the law is crystal clear. The City of Bend and the Forest Service have to maintain or enhance the condition of Tumalo Creek. The City’s use of outdated data and questionable scientific methods in the hopes of minimizing the negative impacts just doesn’t cut it.”

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